Did NSA metadata collection lead FBI to Todashev?

posted at 10:01 am on June 14, 2013 by Ed Morrissey

Over the last week of stories on the NSA’s surveillance programs, many critics have pointed out that the dot-connecting efforts somehow missed the Tsarnaev brothers before the Boston Marathon bombing, even after being flagged by the Russians as potential threats and after Tamerlan Tsarnaev spent six months in Dagestan. But did the NSA find an alleged accomplice to the Tsarnaevs? FBI Director Robert Mueller’s testimony yesterday indicates that the answer seems to be yes, or that the FBI would like to argue that it did:

FBI Director Robert S. Mueller III acknowledged on Thursday that a lack of formal communication within the agency may have prevented investigators from alerting Russian authorities that Tamerlan Tsarnaev had returned to Russia before the Marathon bombing, information that Russian officials say could have averted the act of terrorism.

Mueller also told the House Judiciary Committee that the government’s recently exposed surveillance techniques, which have been criticized as too sweeping, can be credited with helping spur an investigation of an associate of Tsarnaev, Ibragim Todashev, 27. Todashev was shot to death by an FBI agent in Florida last month during an interview related to his and Tsarnaev’s possible involvement in a Waltham triple homicide. Mueller declined to comment on the specific circumstances during Thursday’s hearing, citing an ongoing investigation. …

Mueller’s other significant disclosure involved Todashev, the Tsarnaev associate killed in Florida. Federal law enforcement officials have been quoted anonymously in various publications as saying that Todashev was confessing to a role in a Waltham triple homicide in 2011 and also implicating Tsarnaev in that crime. The FBI has yet to clarify the circumstances of death of Todashev, who has not been linked to the Marathon bombings.

Mueller shed no new light on that investigation Thursday, saying only “there was a response to a threat,” apparently referring to reports that Todashev threatened an FBI agent during questioning.

But in his comments Thursday he used the case to bolster his argument that government surveillance techniques revealed recently are an important tool for law enforcement. There has been extensive debate over two programs to collect millions of phone, e-mail, and Internet records.

When asked how Todashev came to the agency’s attention, he said it was through “a number of ways including one of the programs that is under scrutiny today.”

I’m inclined to be a little skeptical about this. The NSA metadata program is supposed to be used to find communication patterns before terrorists strike, as an intel program rather than a law-enforcement function. They collect the records (contra James Clapper) and then wait for intelligence to discover phones used by terrorist. At that point, they apply to FISA court to review the records of phone calls to find connections inside and outside of the US, and then get warrants for more data on US persons, if warranted, in conjunction with the FBI.

In this case, though, the terrorist attack had already taken place, and the suspects were identified before they got to Todashev. You wouldn’t need the NSA to find out who Tsarnaev had on speed dial; you’d just need his phone, and/or the records on his account, which the FBI could have easily seized with a warrant by that time. If either of the Tsarnaevs had directly contacted Todashev, that would show up in the records accesible by law enforcement in a post-attack investigation.

Perhaps the NSA gave them a short cut to get to Todashev, or sped up the analysis, but even that would miss the point. Based on what we know — especially since we know from Mueller’s testimony yesterday that neither of the Tsarnaevs or Todashev were on the FBI’s radar screens until days after the bombing, identified by tipsters from published photos — the connections wouldn’t have come until well after investigators could have accessed all of that information through regular warrants. This sounds a bit like an attempt to burnish the NSA’s reputation, ironically on a case that at least argues to some degree that the surveillance programs aren’t foolproof.

And make no mistake: The Todashev case is domestic. Yes, he’s from Chechnya. But all of the surveillance and connections between Tsarnaev and Todashev are domestic, and wouldn’t have been allowed under Bush’s “warrantless wiretapping,” and were assumed to not be allowed under FISA – until Snowden’s revelations.

Sounds to me like they got caught with their hands in the cookie jar and are looking wherever they can for something to justify said hand in said jar. Clearly, any leads they developed on possible co-conspirators were developed post-identification of the Tsarnaev brothers by good old-fashioned footwork and not by meta data analysis. I’m calling “Foul” on this.

The Marion County Sheriff’s Office says they’ve solved a double homicide case from 2006 — and the suspect may be responsible for some 30 murders across the country.

…

When they went looking for him, they realized he was already wanted for a murder in Alabama. He was captured crossing the Mexican border in Arizona last month, and Marion County Detectives went to talk him. They were shocked at what he said.

“From his statements, he’s killed over 30 people throughout the United States so this is what he does, he’s an individual who goes around and collects debts for the cartels and kills people,” said Det. TJ Watts with the sheriff’s office.

Mueller also told the House Judiciary Committee that the government’s recently exposed surveillance techniques, which have been criticized as too sweeping, can be credited with helping spur an investigation of an associate of Tsarnaev, Ibragim Todashev, 27.

While Ed pointed out the flaws in using this example to justify the program there is also a second point.

We now have Snowden’s claim of a sweeping phone record collection of the entire county CONFIRMED by the Director of the FBI.

so, from reading the article, no the NSA program didnt lead to todashev. he was found following SOP for a criminal investigation of this nature. a judiciary committee member should insist mueller produce the records showing that it was an NSA intercept and not a normal post-crime check of phone records that led to todashev.

This metadata will be used by the Democrats to destroy up and coming conservative politicians. And the only way it won’t is if conservatives become more forgiving of indiscretions… Lowering the bar for everyone and playing into the Evil One’s hands.

Mueller testified that the Russians tipped us off in 2011 about Tsarnaev, and an agent had interviewed him and had visited his mosque, prior to the attack. The FBI determined he was not a threat.

faraway on June 14, 2013 at 10:20 AM

So then Tamerlan Tsarnaev left the US for Dagestan, where he was supposedly radicalized, and then returned to the US some months later. If the Russians had already warned us about him in 2011, he should have been on a “terrorist watch list”, and the CIA, FBI, and police should have been alerted when he returned to the US.

If this isn’t an argument for better immigration security (not only on the Mexican border, but at all international airports), what is?

If the FBI had been alerted by the Russians about Tamerlan Tsarnaev, then found out that he had traveled to Dagestan and returned to the US, they (or the NSA) could have asked for a FISA warrant on Tsarnaev’s communications, since he was already under suspicion from foreign intelligence. They might have nabbed Tsarnaev before he blew up his bomb, and could have left law-abiding American citizens alone, who have never been to unstable foreign countries.

Once they knew who the Tsarnaev Brothers were, and that they bombed Boston, there was all kinds of probable cause to look at their contacts in the US. Now you had a target, a known phone number, and the probable cause that would get any judge with a brain to give you a warrant.

In the fall of 1996, at the campaign’s climax, Democrats filed with the Federal Elections Commission charges alleging campaign finance violations by Salvi’s campaign. These charges dominated the campaign’s closing days. Salvi spoke by phone with the head of the FEC’s Enforcement Division, who he remembers saying: “Promise me you will never run for office again, and we’ll drop this case.” He was speaking to Lois Lerner.

After losing to Durbin, Salvi spent four years and $100,000 fighting the FEC, on whose behalf FBI agents visited his elderly mother demanding to know, concerning her $2,000 contribution to her son’s campaign, where she got “that kind of money.” When the second of two federal courts held that the charges against Salvi were spurious, the lawyer arguing for the FEC was Lois Lerner.
…

In 2010, Durbin wrote a letter urging Lerner’s IRS division to look closely at a political advocacy group supporting conservatives.

Lerner, it is prudent to assume, is one among thousands like her who infest the regulatory state. She is not just a bureaucratic bully and a slithering partisan; she also is a national security problem, because she is contributing to a comprehensive distrust of government.

The case for the National Security Agency’s gathering of metadata is: America is threatened not by a nation but by a network, dispersed and largely invisible until made visible by connecting dots. The network cannot help but leave, as we all do daily, a digital trail of cellphone, credit card and Internet uses. The dots are in such data; algorithms connect them. The technological gathering of 300 billion bits of data is less menacing than the gathering of 300 by bureaucrats. Mass gatherings by the executive branch twice receive judicial scrutiny, once concerning phone and Internet usages, another concerning the content of messages.

Since no one else here has said it, I am going to say it: I am glad they found this man. Good work.

bluegill on June 14, 2013 at 10:53 AM

Pffft. After searching the bomber brothers phones and getting out the info, anybody could have found this guy. Finding him wasn’t the trick. Interviewing him without killing him turned out to be a challenge though.

I don’t care if the NSA is looking at metadata for communications between people in the US and people in, say, Yemen. It is not unreasonable to assume that *some* communications may have the potential to be in the futherance of *espionage,* especially communications with hostile foreign countries. I’m also indifferent if we are taking an extra look at people coming in from hostile nations. Among the honest refugees can be a lot of spies.

Let’s say (214)555-2112 makes a lot of ten-second calls to 011-967-2-555-1221, but gets called back within the hour from exchanges in Yemen commonly used by “throwaway” cell phones. THAT should be probable cause to take to a FISA court before looking at anybody WITHIN the US that (214)555-2112 may be calling, or who owns (214)555-2112.

What bothers me are the lack of assurances that the only data gathered involve someone in the equation actually not being a citizen and/or in the USA. USA-USA communications should require a warrant.

First there would have to be a demonstration that having the records before the fact is better than getting them after the fact with a strict warrant for a certain case involving discrete individuals. That is a vital step in which a Judge is part of an immediate case… for some judge to decide that everyone in the US must be snooped on makes us all suspects and assumed guilty as you don’t collect such data on the innocent.

Second… how does someone get shot during an ‘interview’? If getting everyone’s phone records leads to people getting shot during ‘interviews’ then, really, why is that a GOOD THING? Remember if the government wants to ‘interview’ you, get a lawyer to go with you. That might lessen the chance of sudden State violence when you are alone with the State for an ‘interview’.

Third, my metadata records, held by the phone company, are records of ingoing and outgoing calls. It is held by the phone company, but they pertain to ME as an individual. The SCOTUS forgot that there are expectations of privacy between companies and individuals for their transactional data, and that when the government wants the data that pertains to BOTH parties even when it is held by ONE party, that BOTH parties need to be notified. The company does not represent the individual and, while holding that data, it pertains to both parties and the company has a responsibility to protect that data and make sure that those it has contracts with are informed about its uses and when it is under government scrutiny via warrant. This is particularly true when no one is named as a suspect in a case and the government demands all the metadata: you do not get a warrant on an innocent person without demonstrable probable cause.

And no government agency, no hack judge should be able to support probable cause for the entire population of the Nation… and yet that is where we are today.

Here is the issue. The government is demanding pretty forcefully for providers and carriers to keep their data for at least three years so they can go back and build a historical case. They even want utility companies to do the same and in one case the company refused because the government provided no funds to buy the extra servers need.

HOWEVER, the big carriers did hold data but limited the time and the type. For example one carrier held texts for three months, another for something like three days.

In real police work holding data for a reasonable length of time does help them put cases together. This is one example. IF they sourced NSA then yes they did get ut from them. However, if it were a normal case- like the dozen or so I worked- the carrier would have enough basic information still on record to hook this guy with bombers.

What we are really dealing with here is them trying to justify the program by it doing regular police work. It would be like a local cop using his new long range laser listening device to hear a conversation and the old cop saying. “Why don’t we walk over sit down next to them and eavesdrop?”

The patriot act was supposed to allow for broader wire taps and records gathering of suspected terrorists, all well and good. No more need to get a warrant for each phone, and an ability to keep up with the changes in communication. None of this requires collecting and storing EVERYONES phone records, browsing histories, ect. All that would be available for targeted gathering, the phone companies hold onto those things, and that data is stored. If the goverment finds a suspected terrorist, they can easily get a warrant for the web of electronic communications tied to that individual, and expand from there. That in itself can be abused, he calls pizza hut and the goverment decides maybe pizza hut is a front, some sort of terrorist switchboard, and then tracks all the calls regular folks make ordering pizza and then all their calls, that alone is dangerous enough privacy wise, but this sweeping plot by the government is just facist in its invasion, and 100 times more disconcerting

A few weeks ago it was simply that road rash had bent nose’s phone number on his cell phone. But now it is by spy wizardry. The Chechens should have lived in the basement of the mosque. They would still be free today.

In this case, though, the terrorist attack had already taken place, and the suspects were identified before they got to Todashev.

That may be true, but you do not know it to be true. It is just as likely that NSA was monitoring the communications of the Boston group for a signicant period and were continuing to monitor the persons in the group who are now publically known with the expectation of identifying others. Then a bureaucratic screw up prevented action being taken when the intelligence got hot. This would be in agreement with Mueller’s testimony.

Bureaucrats tend to do this. For instance in December 1941 the antecedent pf the NSA intercepted a Jappanese message in the Jappanese highest code which had been broken to the effect that they would attack the US within two days. Messages were sent to US facilities. A Bureaucrat didn’t mark the message as urgent. The message to Pearl Harbor arrived concurrently with the Jappanese.